svtruth
Member
As a practical matter, what would you all suggest for us Vermonters who can carry without a permit, but only within the bounds of our small, but beautiful, state?
State Constitutional Carry and its Effect on Reciprocity
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Sam1911
Moderator Emeritus
The conventional wisdom has always been to apply for one or more non-resident permits in some other states which give you the broadest reciprocity spread. UT has always been the perennial favorite as it is recognized by more states than any other. Unfortunately, some states don't recognize any non-resident permits so you have to figure out where you're really going to want to carry and which states' permits you can acquire which will get you there.
danez71
Member
I'm not necessarily disagreeing with you and in fact, I agree with most of what you wrote.
But keep in mind that a federal permit is completely different than national reciprocity.
As Sam quasi agreed with me, I think the Feds could do something with national reciprocity.
I'm no constitutional lawyer be any stretch....
But what about what a DO2AA (Defense of 2A Act) in similar fashion to DOMA (Defense of Marriage Act)? It seems the Fed did a pretty good job of taking that away from the states. Its not a Fed marriage license. If I understand right, The Feds really aren't involved other than to say everyone gets to marry regardless of what the state legislature or state constitution says.
On a side note... and directed at no one in particular. I think this thread is a good example of one of our short comings as a 2A community. We, my self included at times, focus too much on why something cant happen. Instead, we should focus on what can happen and how to make it happen. The out going administration and their brethren have had a lot of successes against us by figuring out ways to get there agenda implemented.
We owe it to ourselves to do the same and introduce/promote what we want and figure out ways to make it happen; for the 2A to apply to all with as few restriction as possible.
Perhaps a DOMA type strategy is possible...?
Sam1911
Moderator Emeritus
Presupposing that all of us WANT it to happen. I think one of the things that keeps us from unity on this is that gun guys range across a spectrum of views on "states rights" and federalism. Some of us would agree to a "whatever it takes" to get our permits recognized in all states. Some are terrified (quite possibly rightly) of a permit system administered by the federal government but would be happy with a law that simply said every state must recognize whatever permit is issued by any other state. And some of us would never be happy with another increase of federal power in telling the states what they must do, even though it could help us in our personal lives.NY has isolated the New England states by not allowing Safe Passage in accordance with FOPA.
No pulp.
danez71
Member
Some of us would agree to a "whatever it takes" to get our permits recognized in all states. Some are terrified (quite possibly rightly) of a permit system administered by the federal government but would be happy with a law that simply said every state must recognize whatever permit is issued by any other state. And some of us would never be happy with another increase of federal power in telling the states what they must do, even though it could help us in our personal lives.
(split into two sections)
Very true.
In regards to the 2nd part,,,,, And then there's me. A part of me is in all of those camps to some degree.
However, I think that the majority (at least here) agree with the basic concept/goal of for the BOR to apply to all with little govt restriction. I cant think of any other Bill of Rights that has such a wide varying degree of restriction from state to state than the 2A.
Some say 'I just wont go to those states' which is certainly their prerogative to do so. But to avoid those states because the BOR is restricted is to give up some of their own Liberty. Its kind of like giving up Liberty in exchange for security. And we all know what Ben said about that.
But more to the point. They've had a lot of success by coming together on things that they can generally agree on, because it incrementally further their agenda as a whole, and figuring out ways to make it happen.
Its about time we learn from them.
sorry for the thread drift.
I think we all think this, but involving and then mixing states is not the right way to do it.
If it should be a national right, then make it a right not a licensed privilege.
But if you are going to keep states in the game, then each state has to be able to not lose its licensing authority to whatever goes in some other state.
The Federal government isn't the only national organization. If the goal is to get uniformity between state laws, the Council of Governors would be a non-Federal avenue to that dialogue.
Personally, if some states want to experiment with gun laws, let 'em. Most states have pretty moderate gun control. NY and CT can trip themselves up with expensive and unworkable laws that we can all learn from.
danez71
Member
I'm a-ok with taking the whole license this out of it.
Not so. As pointed out with DOMA in post 53 the states still have their own marriage license, with fairly trivial differences in requirements to get it, but the feds told them all that they have to marry all.
.... to much focus on why it cant happen when it seems that a similar thing has already happened (DOMA)
Not really. The Feds aren't stepping in to say that states have to stop preventing gays or blacks from getting CCLs. That's just equal protection stuff, about WHO can do something, not HOW it is done.
It would be more like the Fed saying that OR can't have a blood test for marriage because NV does not.
JohnBiltz
Member
Big difference between that not honoring drivers licenses.
Yes, but it is an interstate commerce type problem where one state has blockaded free passage of goods through their state to the handful of states on the other side that can't go another route. Strangely, this has had no consequences, despite federal law.
danez71
Member
Are we all not equal regardless of state?
Are gays and blacks only equal enough in state A to carry with out a "good cause" but not state B where they must jump thru hoops and likely be denied anyways?
Which underscores my point that no other BOR is restricted so fundamentally different from state A to state B.
We are all equal, which means that any citizen that chooses to live in NY is equally screwed as everyone else in NY. And anyone can move to VT, and get the same treatment as anyone else in VT.
If you want to just not have states, I can see that argument, too. But we have states and they are supposed to be different.
danez71
Member
I thought the BOR applied to the whole U.S.of A.
IMO, states can be different by choosing their education system, speed limits, zoning laws etc. and still have the BOR applied far more equally than how it is now.
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The 2nd Amendment, as written, would allow every felon and mentally incompetent person who resides in America to own and carry a bazooka.
I'm not a fan of gun control, but virtually everyone (whether they acknowledge it or not) does not believe in unlimited arms rights for every adult. The squabbling is about where the line is. Having states run their "experiments" is one way of working this stuff out.
I say that as someone who doesn't live in NY, CA, NJ, etc.
danez71
Member
That's been discussed quite a bit here and is simply not true.
Yeah, people are quick to point to normal laws that somehow make it okay for people to not have all their BoR rights, ignoring that is no different than any other gun control law. Or they will point at the second section of the 14th Amendment, not understanding that it only refers to the right to vote.
There is nothing in the Constitution to remove any adult's right to be armed (citizen or not). That only comes from regular laws, just like the GCA.
Under the system the Founding Fathers put in place it's the province of the federal court to decide what the Constitution means and how it applies.
The Founding Fathers assigned the job of deciding what the Constitution means and how it applies to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):
What our Constitution states and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.
So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):
It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.
For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
- Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
- If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
- Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
- Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
- Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
- In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
- In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).
So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.
We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.
With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:
- Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
- In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
- There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
- The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
- Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
- Second Amendment jurisprudence is still in its infancy. Until Heller in 2008, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald in 2010, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
- The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.
CoalTrain49
Member
I remember when the fed decided that the metric system would help us in our personal lives. I was all for it because I worked as a surveyor at that time in the early years of GPS. The system was based in metric units because it was military. Everything had to be converted to feet for civilian engineering use. It would have made things a lot easier for everyone if we had all got on board. The problem was some states resisted it, just like they will when they are forced to accept a federal law mandating that they accept all carry permits. It would surely be challenged in federal court. My guess it would be found unconstitutional based on the forgotten 10th amendment.
There are some down sides to a republic, this being one of them. I still think it's better than a democracy.
DustyGmt
Member
I dont think it's even illegal for a felon to own a firearm in VT on the state level. A game warden could enforce it or any other federal enforcement but I don't think our troopers or local PD's confiscate firearms from anybody regardless of their legal status. Tell me if I'm wrong, I've only heard tid bits about this topic here and there.
barnbwt
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We've been over this with you before, there is no conflict there because Due Process was used to take felons' rights in a court of law (same concept that lets the court levy criminal punishments of various sorts, which has been found to include revocation of the RKBA --even though I personally feel it's a cruel/unusual punishment, the courts presently deem is acceptable). That aspect is not controversial, as is Lautenberg, which retroactively revoked rights of people long after they'd been convicted or (especially) plead guilty to what were once very minor crimes with no long term consequences like disenfranchisement.
The NFA has nothing to do with the Bill of Rights, other than that the RKBA is in direct contradiction with its enforcement to date. The NFA stems from interstate commerce regulation, and the flawed interpretation that this authority permits the federal government to hinder interstate commerce vs. protect free/equal trade among the several states (the obvious contemporary purpose, considering widespread tariff and blockade tactics of the day that you wouldn't want sowing division inside a cohesive political body trying to piece together a post-war economy). The closest bearing the BOR has on interstate commerce would be the 9th or 10th amendments, which are barely worth mentioning at this point in history, but also seem to directly conflict with the NFA as currently enforced (or did I miss the article where the federal government was explicitly authorized to restrict the possession and free commerce of privately owned firearms & powder?)
Due process is a method for determining that something is fairly judged against the accused, but it is not an explanation for how the government has the power to remove an absolute "right". You could use due process to determine that a man is guilty of murder, but that doesn't explain how you could sentence him to be tortured to death. There is no mechanism in the Constitution that explains "alienating" something that is "inalienable." As Frank demonstrates with many examples:
That's what they're doing when they stop a convict from buying a gun, or stop a law abiding person from buying the components of mustard gas.
barnbwt
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5th Amendment said:
14th Amendment said:
Torture is explicitly forbidden by the 8th Amendment ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"), and since torture is not a necessary part of the justice system described elsewhere, there is no conflict there. However, as is shown above in not one, but ultimately two amendments (the latter applied directly to the several states), both rights and standing (i.e. RKBA at the state level by the 'unincorporated' model) may be taken in accordance with a proper adversarial legal process. Your rights are inalienable to God, but are certainly subject to the realities and laws of Man. Just so long as they are not taken arbitrarily (as it is argued was the case with Lautenberg) through Jim Crow or something similar (which is where reciprocity and 'privileges & immunities' arguments start to come into play; if carry is an inalienable right, it is arbitrary to revoke it just because a person is not a resident of your state). So you can still justifiably believe you deserve the RKBA as an inmate, but that doesn't mean the warden has to respect it.
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barnbwt
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Not quite. Scalia was quite clear in Heller about especially dangerous or uncommon weapons being justifiably restricted. This is a nod to the reality that something uncontrollable or intrinsically unstable with potential for predictable collateral damage, needs to be subject to additional controls (and security) for the safety of the general public. Those like us who are knowledgeable in firearms know the comparison you make above is false, because a violent criminal buying a gun --while certainly intrinsically unstable with predictable potential for violent collateral damage (a fact that suggests a failing in our punishment system rather than our gun laws)-- they are certainly not significantly more so merely for lawfully buying a gun. Remember, individual liberties deal in individuals, not 'collective' demographic groups or statistical rates, and an individual with a gun is not an existential threat to his community (not more so compared to any other means of death and destruction as widely available).
But yes, that is the justification they give. Which is based both upon the notion that in total armed ex-cons raise violent crime rates through the use of said arms (regardless of individual participation in these feared violent crimes, the possession of a gun is made illegal), and the notion that a freed ex-con is no longer deserving of the means to adequately defend himself against younger criminals-in-the-making that he himself once resembled before incarceration (this I believe to be a cruel punishment; to be thrown into a violent community, defenseless)
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